Judgement of the Anti-Terrorism Court,
Hyderabad, Sindh, Pakistan, in the Daniel Pearl case, July 15, 2002

Wall Street Journal
reporter Daniel Pearl was abducted and subsequently murdered. Pearl
disappeared on January 23, 2002, while making attempts to establish
contact with Islamist groups during the course of his professional
investigations.

On January 27, Pakistani
and US media organisations received an e-mail stating Pearl was abducted
by a hitherto unknown group calling itself "The National Movement
for the Restoration of Pakistani Sovereignty" (NMRPS). On January
30, the NMRPS sent e-mails to news organisations threatening to kill
Pearl within 24 hours, unless the US set free Pakistani prisoners
being held at Guantanamo Bay in Cuba. Even as the series of e-mails
and threats continued, Jaish-e-Mohammed (JeM) terrorist Omar Sheikh
was arrested in Lahore on February 12 and has been declared prime
suspect in the case.

On February 21, the US
and Pakistan announced that they have received a videotape showing
scenes of Pearl's murder at the hands of his abductors.

The crime was registered
in Karahci (South) at the Artillery Maidan Police Station. In the
charge sheet, Fahad Naseem Son of Naseem Ahmed, Syed Salman Saqib
son of Syed Abdul Rauf, Shaikh Muhammad Adil Son of Abdul Shakoor,
Ahmed Umer Shaikh alias Muzaffar Farooq alias Amin alias Bashir Son
of Saeed Ahmed Shaikh have been named. They were charged under various
sections. The verdict was finally delivered on July 16, 2002.

Presented below is the
text of the verdict.

In The Court of Judge,
Anti-Terrorism, Hyderabad Division & Mirpurkhas Division, at Hyd.

The instant case has
been received in this court under the orders of the Hon'ble High Court
of Sindh, Karachi on 2/5/2002 vide such order dt. 30/4/2002.

2. On 29th March 2002,
the above named accused were challaned by Hameedullah Memon, Investigating
Officer of C.I.A. Police Karachi to face trial for the offences punishable
under the aforementioned sections before the learned Administrative
Judge, who accepted the final challan and directed the case to be
registered, whereafter the case was ordered to be transferred and
assigned to the Anti Terrorism Court No. III Karachi, for disposal
according to law and the hearing was adjourned to 5/04/2002.

It appears that in the
intervening period, the venue for trial was notified by the Home Department,
Government of Sindh directing the trial of this case to be conducted
inside the Karachi Central Jail w.e. from 5/04/2002 by the learned
Anti Terrorism Judge, Court No. III Karachi. On 5/04/2002, compliance
of Section 16 of the Anti Terrorism Act appears to have been made
by the learned Predecessor of this Court. Copies were supplied to
the accused persons in compliance of Section 265(c) Cr. P.C. On 5/04/2002,
non-bailable warrants were issued against the absconders reflected
in Column No. 02 of the challan sheet and the matter was then adjourned.
On 12/04/2002, non-bailable warrants were returned un-executed and
accordingly, Proclamation was ordered to be issued to be returned
on 22/04/2002.

3. Thereafter, record
reveals that the R&Ps of the case was received by way of transfer
from the Court of the Judge Anti Terrorism III Karachi vide order
passed by the Hon'ble High Court of Sindh in Criminal Misc. Application
No. 91/2002 dated 19/04/2002. Prior to the receipt of the case by
the learned Anti Terrorism Court No. II, record shows that the case
was while being tried by Anti Terrorism Court No. III at Karachi,
the accused had filed a Criminal Transfer Application No. 91/2002
on the ground that the learned Anti Terrorism Court No. III presided
over by learned Judge Mr. Arshad Noor could not conduct trial of this
case against the accused persons as in the challan submitted by the
prosecution certain utterances were made before the learned said Presiding
Judge by the accused person and four police personnel were cited as
prosecution witnesses as to that effect. That the learned Anti Terrorism
Court No.II proceeded to frame the charge against all the accused
persons on 22/04/2002 and on 22nd April 2002, the case appears to
have been bifurcated and separated for trial in respect of the absconding
accused and before the commencement of the trial, the learned Presiding
Judge took Oath again as required under Section 16 of Anti Terrorism
Act, 1997. After completing the formalities, the charge was framed
to which the accused pleaded not guilty and wanted trial. As per record
of this case reveals that as many as six Prosecution witnesses were
examined by the learned Presiding Judge of the Anti Terrorism Court
No. II at Karachi (my learned predecessor), when the persecution appears
to have filed an application for transfer before the learned Division
Bench of the Hon'ble High Court of Sindh bearing Criminal Transfer
Application No. 12 of 2002 which was allowed vide order dt. 30/04/2002.
In the said application, transfer had been sought by the prosecution
on the ground of reports of various intelligence agencies and Government
departments from where the following facts had surfaced:-

"a. That there is a threat
of blowing up of the premises where the proceedings are taking place;
and

b. That there is threat
of elimination of the prison staff, Investigating Agency, Prosecution
Team and witnesses".

4. Based on the aforementioned
grounds, the case was directed to be transferred from Anti Terrorism
Court No. II, Karachi to Anti Terrorism Court, Hyderabad, presided
over by the undersigned. It further seems that the order of transfer
of this case to this court at Hyderabad inside Jail was questioned
by the accused persons before the hon'ble Supreme Court of Pakistan
vide Crl. Petition for leave to Appeal No. 126 of 2002 which on hearing
was dismissed by the Hon'ble Supreme Court of Pakistan. Resultantly,
after examination of as many as six Prosecution witnesses, the trial
had recommenced in this court and had concluded in this court. The
case was received in this court on 2nd May 2002 for continuing to
commence with the recording of P.W-7. In order to streamline the process,
it would be profitable to mention that the six prosecution witnesses
were examined by my learned Predecessor were: P.W 1 Nasir Abbas; P.W.
2 Jamil Yousuf; P.W. 3 Javed Abbas; P.W. 4 Faisal Noor; P.W. 5 ASP
Athar Rasheed Butt; and P.W. 6 Asif Mahfooz Farooqi.

5. Now the brief facts
of the prosecution case are that on 4/02/2002, one Mariane Pearl residing
at 19/1 Zamzama Street D.H.A. Phase-V Karachi under her signatures
addressed a letter to the Station House Officer of Artillery Maidan
Police Station, Karachi wherein she placed information on record in
the following terms:- The contents of the letter have been incorporated
in FIR and F.I.R. was registered.

"My husband, Daniel Pearl,
a U.S. National and South Asia Bureau Chief of the Wall Street Journal,
was on assignment in Pakistan. He disappeared on the 23rd of Jan.
2002 and has not come back since that date. I came to know from driver
Nasir Abbas son of Muhammad Din of Taxi Registration No. PL-1676 that
Mr. Abbas dropped my husband in front of the Village Restaurant in
Saddar, Karachi. My husband's whereabouts have not been determined
since that time.

I first heard of my husband's
kidnapping from e-mail message received on the 27th of January 2002.
The e-mail message included photographs that showed my husband held
in detention in inhuman conditions. The writer(s) of the e-mail wrote
that they had abducted my husband in retaliation for the imprisonment
of Pakistani men by the U.S. Government in Cuba and other complaints.

The unknown accused persons
had demanded the provision of Lawyers to Pakistanis detained in the
U.S., the release of the Pakistanis jailed in Cuba to Pakistan, the
return of former Taliban Ambassador Mulla Zaeef to Pakistan and the
delivery of F- 16 fighter jets to Pakistan or the repayment of money
allocated for those F-16 jets as well as 15 per cent interest.

In a subsequent e-mail
received on 30/01/2002, the unknown accused threatened to kill my
husband within 24 hours if their demands were not met.

I approached you for
registration of this case and request that you return my husband from
his kidnappers.

Sd/- Mariane Pearl 19/1
Zamzama Street, Defence Phase V, Karachi.

Karachi, 4/02/2002.

6. The above complaint
was produced by P.W. 17 ASI Aslam Jatt and was taken on record as
Ex. 63/A under Section 154 Cr. P.C.

8. The statements under
Section 342 Cr. P.C. of the accused persons are at vide Ex. 97, 98,
99 and 100 respectively. The accused Omer Shaikh Ex. 97 had led his
defence and examined two defence witnesses namely D.Ws Muhammed Rauf
Ahmed Shaikh 101 and Saeed Ahmed Shaikh Ex. 103. The remaining accused
persons have produced certain documents viz accused Adil Shaikh produced
documents Ex. 106/1 106/2, 106/3, and accused Fahad Naseem Ex. 107
produced his documents Ex. 107/1, 107/2, 107/3, 107/4, 107/5, 107/6,
107/7, 107/8, 107/9, 107/10, 107/11, 107/12, 107/13, 107/14, 107/15,
107/16, 107/17 and accused Syed Salman Saqib Ex. 108 produced defence
documents Ex. 108/1 to 78 and 108/79 to 82. The defence Advocates
close their sides vide Statement Ex.111 dt. 4/07/2002. The final arguments
were made as required under Section 265-C Cr. P.C. Now, since the
accused party have led defence, therefore, the arguments of the learned
defence counsels were heard and then the prosecution side was heard
as required under Section 265-G Cr.P.C. The accused have not examined
themselves on oath though opportunity was provided.

9. In the instant case
the points for determination are as under:-

(1) Whether the accused
along with the absconding co-accused hatched a conspiracy on 11/01/2002
at Room No.411 Akbar International Hotel, Rawalpindi to abduct Daniel
Pearl, a Jewish American citizen, a professional journalist belonging
to the Wall Street Journal, U.S.A. for raising demands of ransom?

(2) Whether in pursuance
of the conspiracy hatched, the accused persons had abducted Daniel
Pearl on 23/01/2002 at about 7.00 p.m. near the gate of hotel Metropole,
Saddar, Karachi, adjacent to Village Restaurant to an unknown destination
and detained him in their captivity?

(3) Whether after abducting
Daniel Pearl the accused transmitted the demands for ransom through
e-mails dt. 27/1/2002 (with documents) to Wall Street Journal amongst
others, and the complainant Mariane Pearl in the following terms:-

a) Lawyers should be
provided to the Pakistani detainees with the FBI so that they (Pakistanis)
can fight their case.

b) The Pakistani detainees
who are jailed in Cuba should be kept in Pakistani Jails so that they
could fight their case in Pakistani Courts.

c) The return of former
Taliban Ambassador Mulla Muhammed Zaeef to Pakistan.

d) Delivery of F-16 fighter
jets to Pakistan or the repayment of money allocated for those F-16
jets as well as 15 per cent interest.

(4) Whether the accused
after having failed to receive the demanded ransom had sent yet another
e-mail (with documents) to the complainant on 30th Jan 2002 threatening
to kill Daniel Pearl within 24 hours if their demands were not met?

(5) Whether the accused
on or after 30th January 2002 committed murder of Daniel Pearl by
slaughtering and caused the evidence of the dead body to disappear?

(6) Whether the accused
in collusion with the absconding co- accused prepared, recorded and
transmitted the video cassette of slaughter of Daniel Pearl which
conveyed the visual images and sounds, the effect of which has struck
terror, fear, sense of insecurity in society?

(7) Whether all accused
persons have aided, abetted, participated, committed acts for achieving
the objective of the hatched conspiracy of kidnapping for ransom,
raising demands of ransom, and causing murder of Daniel Pearl?

(8) What offence, if
any, the accused have committed?

9. My findings on the
above Points are as under for the following reasons:-

Point No. 08 :"Accused
Fahad Naseem s/o Naseem Ahmed, Syed Salman Saqib S/o Syed Abdul Rauf
Shaikh, Muhammed Adil S/o Abdul Shakoor, and Ahmed Omar Saeed Shaikh
alias Muzaffar Farooqi alias Amin alias Bashir S/o Saeed Ahmed Shaikh
have committed the offences under Sections 365-A, 120-A, 302 PPC read
with Section 6 of the Anti Terrorism Act, 1997 and as such accused
Ahmad Omer Saeed Shaikh is sentenced and convicted under Section 7
of Anti Terrorism Act, 1997 to death to be hanged by the neck till
he is dead and the remaining accused persons namely Fahad Naseem.
Syed Salman Saqib, and Muhammed Adil Shaikh are sentenced and convicted
under Section 7 of the Anti Terrorism Act, 1997 for life imprisonment
and also to pay fine of Rs. 5,00,000/- (Five lacs) each. In case of
non-payment of fine, accused shall undergo R.I. for Five (5) Years
more. This court also direct all the accused persons to pay jointly
a sum of Rs. 20,00,000/- (Twenty lacs) which shall be paid by them
in equal share to be paid to the widow of abductee and his orphan.
The imprisonment sentences shall run concurrently and benefit of S.
382-B Cr.P.C. is given to the accused persons.

10. Reasons Point No.
01.In order to prove this point, the prosecution side has examined
P.W-6 Asif Mehfooz Farooqi and P.W. 7 Aamir Afzal Qureshi. P.W. Asif
Mahfooz Farooqi is a Journalist and as per prosecution version and
he had association and posted in Pakistan on behalf of J.I.J.I. Press
Tokyo. He was previously known to Daniel Pearl and had worked for
a week at Islamabad with Daniel Pearl. He had arranged a meeting of
Daniel Pearl with accused Ahmed Omar Saeed Shaikh alias Basheer at
Room No. 411 at Akbar International Hotel, Rawalpindi and he has identified
accused Ahmed Omar Saeed Shaikh alias Bashir to have been the person
who had a meeting at Room No. 411 on 11/02/2002 before the Judicial
Magistrate P.W. 9 Erum Jehangir. He has identified the accused Ahmed
Omar Saeed Shaikh as Bashir in the proceedings of the case.

11. About this witness
the learned defence counsel Mr Abdul Waheed Katpar has argued out
that this witness is a set up witness and no any conspiracy was made
as alleged by the accused Omer Saeed Shaikh regarding the Daniel Pearl.
The learned defence counsel Mr Abdul Waheed Katpar in support of this
arguments has referred Section 120-A PPC and according to him in this
case the total accused are eleven in number and how such huge No.
of the accused persons can assemble in a hotel located at Pindi to
make a conspiracy as alleged regarding Daniel Pearl. The learned D.C.
Mr Katpar has submitted in his arguments that the identification test
held before the Judicial Magistrate P.W. 9 Erum Jahangir in the presence
of this P.W. regarding accused Ahmed Omer Saeed Shaikh was quite illegal
as according to him the accused was not given chance to cross this
witness through his advocate.

According to Mr Katpar
the learned D.C. the evidence of this P.W. can not be believed as
true. The learned defence counsel Mr Abdul Waheed Katpar has argued
that this witness at the time of identification has not disclosed
the role which was played by the accused Ahmed Omer Saeed Shaikh,
therefore, according to him the identification test held before the
Magistrate is without any legal force. The learned D.C. Mr Katpar
in support of his arguments has referred PLD-1981-SC-143 in a Criminal
Appeal of Lal Pasand - appellant vs. The State respondent. He also
referred Article 129, 122 of Qanun-e-Shahadad Order 1984 in support
of his arguments and he contended that the prosecution side has failed
to prove this allegation of conspiracy allegedly made by the accused
Ahmed Umer Saeed Shaikh.

12. Mr Rai Bashir Ahmed
the learned defence counsel for the remaining accused persons and
for Ahmed Umer has in his arguments also assailed upon the evidence
of this P.W. and has contended that this witness is a false witness
and his testimony can not be believed as to be true. No conspiracy
as alleged against accused persons regarding Daniel Pearl was hatched.
The identification test held before the Judicial Magistrate P.W-9
Erum Jahangir about accused Omer Shaikh does not carry any legal weight.
According to these learned defence counsels, the case is full of doubt
and benefit of doubt therefore must go to the accused persons. This
learned defence counsel in support of their arguments has referred
1989-SCMR-2056 (a) Sher Muhammed - The Petitioner vs. Revenue Officer
and others Respondents, 1989-SCMR- 720 Shahmir - appellant Vs. Muhammed
Afzal and two others respondents.

13. As against this,
the learned Advocate General Mr Raja Qureshi has submitted in his
arguments that this P.W. Asif Mehfooz Farooqi is a true witness. This
witness has rightly identified accused Ahmed Omer Saeed Shaikh alias
Bashir as Bashir in the proceedings of the case.

14. Now about P.W. 7
Aamir Afzal Qureshi. Both the learned defence counsels has argued
out that this witness is also false witness and the prosecution side
has failed to produce the record of the employment of this witness
in Akbar International Hotel Rawalpindi where he was employed as per
prosecution story and this witness according to the learned defence
counsel has given a false story that accused Ahmed Omer Saeed Shaikh
was occupying a room No. 411 in the name of Muzaffar Farooq. The learned
defence counsel has also argued out that this P.W. Aamir Afzal Qureshi
has not produced a register showing the entries of incoming and outgoing
of the customers to whom the rooms of the hotel were allotted and
showing that the accused Ahmed Omer Saeed Shaikh was given room No.
411 on the date and time. Both the learned defence counsels in their
final submissions has contended that evidence of this P.W. is not
trustworthy.

15. As against this,
Mr Raja Qureshi the learned Advocate General has argued out that the
evidence of this P.W. Aamir Afzal Qureshi is confidence inspiring
because this P.W. has produced a record which are the receipt of the
hotel confirming Room No. 411 to be in possession of accused Ahmed
Umer Saeed Shaikh and this witness has identified accused Ahmed Omer
Saeed Shaikh rightly at the time of identification test held before
the Judicial Magistrate Erum Jahangir P.W-9 in the proceeding of this
case.

16. I have given my considered
view to the arguments advanced by the learned defence counsels and
the learned Advocate General and I have perused the evidence of above
P.Ws on record. I find that P.W 6 Asif Mahfooz Farooqi is a journalist
and had association with Daniel Pearl having his meeting on 22nd Dec.
2001 at Islamabad. He was working for a Japanese news agency and the
Predecessor of Daniel Pearl for whom Asif Mahfooz Farooqi was working
had instructed him to remain in association with Daniel Pearl being
the successor from the Wall Street Journal.

It appears from the record
that Daniel Pearl and P.W-6 Asif Mahfooz Farooqi worked as Journalist
collectively and in discussion it further appears that Daniel Pearl
had asked this witness that a news item had appeared in the American
newspaper in relation to one Richard Reed, who according to Daniel
Pearl had come to Pakistan and had stayed with Syed Mubarak Shah Gilani
at Lahore. This Richard Reed was alleged to have planted bomb in his
shoes in order to blow up an aircraft in the United States. It was
in this perspective that led Daniel Pearl to meet Syed Mubarak Shah
Gilani.

Accordingly, P.W-6 Asif
Mahfooz Farooqi was asked whether he could arrange a meeting of Daniel
Pearl with Syed Mubarak Shah Gilani in response to which the witness
said he will make his efforts to do so and accordingly a meeting did
take place at Room No. 411 of Akbar International Hotel on 11/01/2002
which appears to have been participated by Asif Mahfooz Farooqi, Bashir
and one Arif alias Hashim, absconding co-accused. Though this witness,
it has come on the record that Bashir in fact was the alias of accused
Ahmed Omar Saeed Shaikh whereas Arif is one of the absconding accused
person reflected in the challan in the name of Hashim alias Arif son
of Qari Abdul Qadeer.

In this meeting Daniel
Pearl in the presence of P.W. 6 expressed his desire to meet Pir Mubarak
Shah Gilani when accused Ahmed Omar Saeed Shaikh alias Bashir placed
himself as a "Mureed" to Pir Mubarak Shah Gilani before Daniel Pearl.
Thereafter, Daniel Pearl informed P.W. 6 that Bashir who in fact was
accused Ahmed Omar Saeed Shaikh had already arranged his meeting with
Pir Mubarak Shah Gilani but in the city of Karachi. It was on 23/01/02
between 3 to 4 p.m., that P.W-6 received a phone call from Daniel
Pearl at Karachi asking him as to whether it was safe for him to be
meeting Syed Mubarak Shah Gilani.

In response to this query,
a quick answer that was responded to by P.W. 6 was to effect that
if Syed Mubarak Shah Gilani is a public figure then there was no harm
in meeting him. Thereafter, on the following day, i.e. 24/1/2002 P.W-6
received a call from complainant Mariane Pearl informing that Daniel
Pearl has not returned home since the previous day i.e. 23/01/2002
and asked as to whether P.W-6 knew his whereabouts. PW-6 has identified
the said Bashir available in Room No. 411 at Akbar International Hotel
to be accused Ahmed Omar Saeed Shaikh before the learned Judicial
Magistrate (P.W-9) in the identification parade held on 26/02/2002
and has also identified Bashir in Court as accused Ahmed Omar Saeed
Shaikh who had in court disclosed his name to be Ahmed Omar Saeed
Shaikh, upon being identified as Bashir.

17. It would be seen
that the very meeting which took place at Room No. 411 was aimed to
conspire and abduct Daniel Pearl, an American Citizen a Journalist
of Wall Street Journal to raise their demands for ransom after abducting
Daniel Pearl. Such conspiracy was between accused Ahmed Omar Saeed
Shaikh and Hashim alias Arif son of Qari Abdul Qadeer (absconding
accused). It would thus be seen that on 11/01/2002 at Room No. 411
of Akbar International Hotel, Rawalpindi is the venue where in the
conspiracy to kidnap Daniel Pearl takes place and there is a meeting
of minds between accused Ahmed Omar Saeed Shaikh and absconding accused
person Arif alias Hashim for kidnapping of Daniel Pearl. This conspiracy
was based on the fictitious mode of arranging a meeting of Daniel
Pearl with Syed Mubarak Shah Gilani by Ahmed Omar Saeed Shaikh posting
to be a Mureed of Pir Mubarak Shah Gilani and that by posing under
a different name of Bashir.

18. I also find that
P.W-7 Aamir Afzal Qureshi who is a receptionist of Hotel Akbar International,
Rawalpindi who has provided the record in respect of Room No. 411
to the Investigators as to under whose occupation the said Room No.
411 was on 11/01/2002 upto 12/01/2002. On examining the record, he
has stated that the same was occupied by a person named Muzaffar Farooq
who had stayed there for one night i.e. checked in on 11/01/2002 and
checked out on 12/01/2002. He further stated that it was the investigator
to whom record was provided and who had informed him that the person
who had occupied Room No. 411 on 11/02/2002 was not Muzaffar Farooq
but was actually accused Ahmed Omar Saeed Shaikh. P.W-7 Aamir Afzal
Qureshi further disclosed that a foreigner had also come to meet the
guest in Room No. 411 which foreigner was disclosed by the investigator
to P.W-7 to be Daniel Pearl. Record of Hotel in respect of Room No.
411 of 11/01/2002 and 12/01/2002 are Ex.P-10/1 1 upto Ex. P-10/4.

19. It would thus be
seen that P.W-7 identifies accused Ahmed Omar Saeed Shaikh alias Muzaffar
Farooq present before this court and had pointed out to him rightly
as per the record of this case.

20. It would thus be
seen that the elements of conspiracy being hatched could be gathered
from the aspect that while accused Ahmed Omar Saeed Shaikh checks
into Room No. 411 at Akbar International Hotel, Rawalpindi he gets
his name recorded in the Hotel record as Muzaffar Farooq and once
he had checked in and a meeting has been arranged between him and
Daniel Pearl through absconding accused Arif he identifies himself
to be Bashir to Daniel Pearl and P.W-6 Asif Mahfooz Farooqi identifies
accused Ahmed Omar Saeed Shaikh in the identification parade as Bashir
whereas P.W-7 Aamir Afzal Qureshi identifies Ahmed Omar Saeed Shaikh
in court as Muzaffar Farooq. This aspect coupled with the photocopy
of the NIC in the name of Bashir and original identity card of Rauf
Ahmed Siddiqi reflecting photograph of accused Ahmed Omar Saeed Shaikh
recovered at the time of his arrest on 13/02/2002 by P.W-23 reflecting
the documents i.e. NIC the photograph of accused Ahmed Omar Saeed
Shaikh to be under the identity of Rauf Ahmed Siddiqi which has been
duly confirmed by the National Registration Office at Multan Ex. 80/1
to be bogus and corroborates his criminal conduct.

21. Hence a comfortable
conclusion could be arrived at that a conspiracy was hatched on 11/01/2002
at Room No. 411 of Akbar International Hotel, Rawalpindi to abduct
Daniel Pearl, an American Citizen, a Professional Journalist belonging
to the Wall Street Journal under the garb of arranging a meeting for
him with Pir Mubarak Shah Gilani. Both these above witnesses were
subjected to extensive cross examination and their testimonies could
not be shattered by their learned defence counsels. Hence Point No.
1 is proved. This Point is answered accordingly.

Point No. 02.

22. In order to prove
this point the prosecution has examined P.W-1 Nasir Abbas and P.W.
2 Jameel Yousuf, Ex. 28 and Ex. 31 respectively. P.W. Nasir Abbas
is an eyewitness. He is Taxi Driver, who had last dropped Daniel Pearl
in front of Village Restaurant adjacent to Hotel Metropole. He had
seen Daniel Pearl to have been made to sit in a white Toyota Corolla
Car by accused Ahmed Omar Saeed Shaikh. He has further identified
Ahmed Omar Saeed Shaikh sitting in a white car with whom Daniel Pearl
also sat. He participated in the identification parade test held on
6/03/2002 before Judicial Magistrate. He is also a mashir of vardat.
Such mashirnama was executed on 5/02/2002 at 1445 hours along with
co-mashir H.C. Aashiq Ali. He had also got recorded his statement
under Section 164 Cr.P.C. before the Judicial Magistrate when he was
not cross examined by the counsel for the accused before the Judicial
Magistrate, though opportunity was adequately provided. He has also
identified the accused in Court.

23. P.W-2 Jameel Yousuf
in his deposition on record has stated that he is Chief of CPLC Karachi.
He has further stated that Daniel Pearl had taken an appointment on
22/01/2002 from him to discuss Police Rules which appointment was
fixed for 23/01/2002 at 5.15 pm. Accordingly, Daniel Pearl reached
the Governor's House where the office of CPLC is situated through
gate No. 4 of the Governor's House. While Daniel Pearl was sitting
with P.W-2, two calls were received by Daniel Pearl, the first call
being around 5:50 or 5:52 pm which appeared to have originated from
the office of Daniel Pearl which were overheard by P.W-2 to be relating
to general discussion of the office of Daniel Pearl.

The second call was stated
by this witness to have been received by Daniel Pearl at 6:28 pm while
Daniel Pearl was in the office of P.W-2. This witness informs that
Daniel Pearl told the caller who had called at 6:28 p.m. that he is
very close to the venue for his appointment with the caller and that
he will be there at 7:00 p.m. This P.W-2 further testifies that Daniel
Pearl departed from his office at 6:45 pm whereafter on the following
day he had proceeded to Islamabad to have a meeting with the Minister
of Interior and while being in the meeting he had placed his telephone
on vibration so as to get the messages recorded.

He states to have received
messages of Mariane Pearl amongst others, while in the meeting with
the Minister of Interior and after having been free from the meeting,
he called Mariane Pearl to ask the reasons as to why she called P.W-2.
She informed P.W-2 that where did Daniel Pearl go after he left his
office to which he expressed no knowledge but he did specify to her
that while Daniel Pearl was sitting with P.W-2, two calls were received
by him on 23-01-2002 between 5:15 pm to 6:45 pm when he departed wherein
Daniel Pearl had assured the caller to be there for his appointment
at 7:00 p.m. stating that he was very close by to the meeting point.
The nature and function of P.W-2 is to assist the investigation in
criminal cases and high profile cases and it is therefore, that the
police had contacted him and he was able to obtain print-outs of the
telephone of Daniel Pearl so as to see the incoming calls which were
received by Daniel Pearl while he was there with him on the previous
day. Such incoming calls were reflected from the Mobil Link record
to have been made from telephone No. 0300-2170244 which information
was also passed by P.W-2 to Mariane Pearl who had, in turn, informed
P.W-2 that this telephone number is of Imtiaz Siddiqui, an absconding
co-accused in this case which was learnt from the e-mails received
by Mariane Pearl from Daniel Pearl and have been produced on record
as Ex. P/5 and Ex. P/6 respectively.

24. Both these witnesses
were subjected to lengthy cross examination but their testimonies
were not shattered.

25. I have heard the
arguments above these P.Ws from the learned defence counsels Mr. Abdul
Waheed Katpar and Mr. Rai Bashir Ahmed. It may be pointed here that
Mr. Rai Bashir Ahmed was also appearing for all the accused persons
as per record.

26. Mr. Abdul Waheed
Katpar the learned defence counsel for accused Ahmed Omar Saeed Shaikh
has contended in his arguments that both these witnesses named above
are the setup witnesses. P.Ws Nasir Abbas is a Taxi Driver and as
per record the incident as alleged had taken place on 23rd Jan. 2002,
whereas, Nasir Abbas had allegedly identified the accused Ahmed Omar
Shaikh at the time of identification in the month of March 2002 and
according to him this is quite impossible that after this period how
this witness Nasir Abbas could identify the accused. About the second
witness P.W. Jameel Yousuf the learned defence counsel Mr. Katpar
had stated that he is a policeman and therefore his testimony can
not be believed as to be true.

27. Mr. Rai Bashir Ahmed
the learned defence counsel has argued out that both these witnesses
are the false witnesses and about the abduction of Daniel Pearl the
prosecution has failed to discharge their burden successfully. The
learned defence counsels in support of their arguments have referred
1996-Pak Cr. L. Journal-Pesh-1811 Ishtiaq Ahmed - Appellant vs. The
State Respondent, while relying on this authority the learned defence
counsel has contended that therefore the case is doubtful and benefit
doubt must go to the accused persons. He placed reliance 1989-SCMR-2056
Sher Muhammed - Petitioner vs Revenue Officer and others.

28. As against this Mr.
Raja Qureshi learned Advocate General has argued out that P.W. Nasir
Abbas is an eye witness about the abduction of Daniel Pearl by the
accused Ahmed Omar Saeed Shaikh and he has narrated the ocular account
without any contradictions. He is independent witness, therefore,
his testimony can not be discarded, and according to Mr. Raja Qureshi
the evidence of P.W. Jameel Yousuf has corroborated the evidence of
P.W. Nasir Abbas. The learned Advocate General in support of his arguments
has referred 2002-SCMR-820 in a criminal Appeal of Soulat Ali Khan
Appellant vs.

The State Respondent.
The learned A.G. has also mentioned that evidence of P.W Nasir Abbas
on the point of abduction of Daniel Pearl by accused Omar Saeed Shaikh
is a last seen evidence and this evidence is a confidence inspiring
and can not be discarded. He in support of his arguments has referred
2001-Pak. Cr. L.J. Quetta-1766 (c) in a criminal appeal Muhammed Khan
and others Appellant vs. The State Respondents in which it has been
held as follows:

"Appreciation of evidence
- last seen evidence - circumstances that the deceased was last seen
with the accused is a reliable piece of evidence if corroborated by
other pieces of circumstantial evidence which are interlinked and
which clearly connects the accused with the commission of offence".

29. The learned A.G.
Mr. Raja Qureshi has also referred PLD- 1995-SC-01 in a case State
through A.G. Sindh Karachi - Appellant vs Salman Hussain and others
Respondents, in which it has been held "while trying in a criminal
case under Section 365-A and 109 PPC the approach of the court in
matters like the case of kidnapping for ransom should be dynamic and
if the court is satisfied that the offence has been committed in the
manner in which it has been alleged by the prosecution, the technicalities
should be overlooked without causing any miscarriage of justice".

30. I have given my considered
view to the arguments advanced before by the learned defence counsels
and by the learned Advocate General. I have also perused the evidence
of above these two P.Ws on record, I find that it is a settled position
in law that if some fact is deposed to in examination-in-chief which
is not questioned in cross examination, the presumption is that, that
part of the evidence is deemed to have been accepted by the party
against whom that evidence has been given. Acting on this principle,
it would be safe to arrive at a finding that the evidence of P.W.
1 is confidence inspiring and has not been shaken in the process of
cross examination and is positively to the effect that Daniel Pearl
was last seen with accused Ahmed Omar Saeed Shaikh whereafter he has
not been seen.

31. In order to arrive
at a positive finding, it would be profitable to examine the definition
of "Abduction" defined under Section 362 PPC.

"Abduction: Whoever by
force compels or by any deceitful means induces any person to go from
any place, is said to abduct that person".

As such the nature of
evidence that has come on record through this witness falls on all
four to the element of deceit under a hatched conspiracy to kidnap
Daniel Pearl.

32. In this connection,
the evidence of P.W. 2 Jameel Yousuf strongly corroborates the evidence
of P.W. 1 Nasir Abbas to establish that P.W.-2 was also the second
last person to have been seen or having been available with Daniel
Pearl upto 6.45 p.m. on 23-01-2002 where after, Daniel Pearl was last
seen at 7.00 p.m. on 23-01-2002 with accused Ahmed Omar Saeed Shaikh
by P.W-1. The conversation of Daniel Pearl with telephone caller heard
by P.W. 2 in whose office Daniel Pearl was sitting pursuant to an
appointment with P.W.-2 is not at all hit by the provision of hearsay
evidence under Qanun-e-Shahadat. In this context, reference could
be made to Article 71 of Qanun-e-Shahadat which is to the following
effect:

"Article 71 - Oral Evidence
must be direct. Oral evidence must, in all cases whatever, be direct
that is to say: if it refers to a fact which could be seen, it must
be evidence of a witness who says he saw it; if it refers to a fact
which could be heard it must be the evidence of a witness who says
he heard it".

Hence the finding on
this point is proved. As regards the citations referred by the learned
defence counsels in this connection as quoted above my respectful
submission is that the citations are not relevant to this case. As
the facts reported therein are not of identical nature of this case,
Whereas, the law cases referred by the learned Advocate General Mr.
Raja Qureshi have got relevancy to this case. This point is answered
accordingly.

34. Now, about these
P.Ws I have heard arguments from the learned defence counsels and
from the learned Advocate General and I have perused the evidence
of above these P.Ws they were subjected to lengthy cross examination.

35. The learned defence
counsel Mr Abdul Waheed Katpar for accused Ahmed Omer Saeed Shaikh
has mentioned in his arguments that Daniel Pearl was never abducted
by the accused Ahmed Omer Saeed Shaikh a false story has been cooked
out against the accused by the prosecution. According to Mr Abdul
Waheed Katpar the demands for ransom through e-mails to Wall Street
Journal as alleged in the charge were never transmitted. According
to Mr Katpar, the accused Ahmed Omer Saeed Shaikh along with the other
accused persons has not sent another e-mails documents to the complainant
on 30th Jan 2002 threatening to kill Daniel Pearl within 24 hours
if their demands were not fulfilled as alleged by the prosecution
side.

The learned Advocate
Mr Katpar has further argued out that the accused Ahmed Omer Saeed
Shaikh along with other accused persons on 30th Jan 2002 had never
committed murder of Daniel Pearl by slaughtering him and he had never
talked the evidence of dead body of Daniel Pearl to disappear. According
to Mr Katpar the accused Ahmed Omer Saeed Shaikh in collusion with
the absconding accused persons had never recorded and transmitted
the video cassette of slaughtering of Daniel Pearl which allegedly
conveyed the visual images and found no any terror, fear, sense of
insecurity in the society was created as alleged.

The learned Advocate
Mr Katpar has further argued out that accused Amed Omer Saeed Shaikh
alongwith other accused persons has never aided, abetted, participated
and committed act for achieving the purpose of making conspiracy of
kidnapping for ransom and he has never raised demands of ransom and
causing murder of Daniel Pearl. The learned defence counsel Mr Katpar
finally has argued out that all the witnesses in this regard are the
policemen and they are the false witnesses and they deposed against
the accused persons the learned defence counsel Mr A. Waheed Katpar
has finally submitted that the case is full of doubt and the witnesses
are not independent.

He in support of his
arguments has referred PLD-1999-Lah-131 in a criminal appeal of State
Pet. Vs. Sameeullah and 16 others. Mr Katpar has also referred PLD-2002-Lah-247
in a criminal appeal The State - Pet. Vs. Secretary health Punjab.
Mr Katpar has also referred Article 123 and Article 124 of Qanun-e-Shahadat
order 1984 with the further contention that cassette Article-1 is
a document and the prosecution has failed to adduce evidence of the
person who had prepared this video cassette as has been provided under
the relevant provision of Qanun-e-Shahadat Order 1984. Mr Katpar also
further submitted that in this case the recovery Mushirs are not inhabitants
of that place as required under Section 103 Cr.P.C.

36. Secondly, Mr Rai
Bashir Ahmed who is also appearing for all the accused persons has
contended in his arguments that in this case the burden of proof lies
upon the prosecution side for the entire allegation against the accused
party. According to Mr Rai Bashir Ahmed no any e-mail message was
made from Pakistan. According to Mr Rai Bashir Ahmed, the recovery
of the laptop Computer and writings of e-mail messages and other documents
and also video cassette as Article 1 were not witnessed by the independent
persons, all the witnesses are the policemen and therefore, according
to him their testimony can not be believed as to be true.

The witnesses of the
recovery P.W Zaheer Ahmed are not local inhabitants of the place.
According to him, the non compliance of Section 103 Cr.P.C has been
made in this case and therefore, according to him the entire case
is doubtful and false and as such the benefit of doubt is to be given
to the accused persons. Mr Rai Bashir Ahmed, in support of his arguments
has referred 1996-Pak.Cr.L.J-Pesh-1811 Ishtiaq Ahmed Appellant vs
The State Respondent. He has also referred 1989-SCMR-2056 Sher Muhammad
Pet. Vs Revenue Officer, 189-SCMR=720 in a case Shahmeer - Appellant
vs. Muhammed Afzal and others, 1992-SCMR-196 in a criminal appeal
(b) of Daniel body (Saifullah and others) - Appellant vs the State
respondent. He has finally prayed that the case is doubtful and the
accused persons are entitled to the benefit of doubt, and are entitled
to acquittal.

37. As against this Mr
Raja Qureshi the learned Advocate General has argued out thatthe witnesses
are reliable and their testimony can not be brushed aside because
in absence of availability of the private witnesses of that place,
these witnesses are as much competent as those of the witnesses of
that place provided that any enmity previously existing is proved,
between them and the accused party. The learned Advocate General in
support of his arguments has placed reliance 2001-Pak. Cr. L.J-Quetta-1543
(b) in a criminal appeal of Abdullah - Appellant vs. The State respondent,
in which it has been held as follows:-

(b) Criminal Trial

"Evidence - Police witness
- Police witnesses were not always liars and the presumption that
a person acted honestly would apply as much in favour of a police
officer as of any other person and his testimony could not be excluded
except for valid reasons - No justification insisted to exclude testimony
of police witnesses from consideration when same was corroborated
by independent evidence".

38. Now, about the aforesaid
witnesses I would proceed while dealing with the testimony of each
of the prosecution witnesses as follows in the light of arguments
made by the learned counsels and the facts brought on record of this
case:-

P.W 22 Rao Muhammed Aslam.

39. Before, I proceed
to examine the evidentiary value of prosecution witness No. 22 Rao
Muhammed Aslam, it is necessary for me to observe that it was complainant
Mariane Pearl who had sent a written application addressed to the
S.H.O. Artillery Maidan Police Station dt. 4th Feb. 2002 (Ex. 63/A).
This complaint was recorded in the 154 Cr. P.C Book maintained at
the Artillery Maidan Police Station by P.W-17 Muhammed Aslam Jatt
which culminated into the assignment of investigation of the complaint
and the F.I.R registered by P.W 17 Aslam Jatt to P.W 22 Muhammed Aslam
on 4/02/2002.

40. On 5/02/2002, Rao
Muhammed Aslam goes to the residence of Mariane Pearl who provides
to him two sets of e-mails which are secured under the mashirnama
Ex. P/7 and the said two sets of e- mails are Ex. P/8 with attachments
(1 to 14). These emails have been secured through mashir P.W-3 Javed
Abbas. It appears that these very e-mails had been addressed to numerous
users of Internet globally which had also reached Mariane Pearl and
thus the fact that Daniel Pearl was an American citizen, the U.S Consulate
Karachi contacted P.W-18 Mehmood Iqbal Hashmi who is an internet service
provider at Karachi.

P.W 18 Mehmood Iqbal
Hashmi.

41. He is a graduate
in Computer Science and possesses International Certificate in Microsoft
and Brain Bench. He was provided with the e-mails received even at
the U.S Consulate from the Security Manager at U.S Consulate namely
Mr. Zahoor Bashir asking P.W-18 to locate the I.P address i.e. Internet
Protocol Address. As P.W 18 was working for the last six years at
Web Net Communication, Karachi, he possesses the capability of locating
the service provider as well as the Internet Protocol from where the
e-mails may have originated.

Accordingly, by using
the database and the hotmail Worldwide hot-web, P.W 18 was able to
locate that the number from which the said e-mails have originated
is subscribed by Shaikh Naeem which is 8125028. Accordingly, he responded
upon locating the same to the U.S Consulate as well as provided the
same details of having located the I.P. address of the sender of the
e-mails to the second Investigating Officer of this case P.W 23 namely
Hameedullah Memon as Ex. 64-A. The emails of which I.P was tracked
down by P.W 18 provides the entire data pertaining to abduction of
Daniel Pearl which had been tapped which had contained certain pictures
of JPG in the form of data and each and every thing which was transmitted
on 30/01/2002 and each and every thing which was shown on the papers
on the statement was as per International standards.

P.W 14 Shaikh Naeem.

42. He has an Internet
concern entitled as "SPEEDY INTERNET". This Speedy Internet of P.W
14 is a provider of Internet Cables to users under contract against
payment for such facility. He had entered into a contract with accused
Fahad Naseem which contract has been produced in Court as Ex. 58/A.
He further maintains the time of the users when they have used the
facility which time and the information of the user is automatically
generated by the server of their system itself.

He has produced complete
record of his business for providing such facility as Ex. 58/B. Along
with the information, he has also produced the Register of customers
reflecting as to which connection is provided to which particular
user and when information was provided to him that from his telephone
number at a relevant point of time on a relevant date the questioned
e-mails were sent, he had sought time from the investigation agency
to provide complete information and ultimately did provide the requisite
information that such e- mails were transmitted through connection
No. 66 which under a contract was provided by him to accused Fahad
Naseem and accordingly, led the Investigation Team to the residence
of Fahad Naseem where the connection was provided which resulted into
recoveries of two original manuscript of e-mails (Ex. 51/B and Ex.
51/C) in Urdu and English respectively alongwith Scanner, Article-I,
Laptop on 11/02/2002 in the presence of mashir P.W-20 Zaheer.

43. It would thus be
seen that P.W 18 Mehmood Iqbal Hashmi identified from his system that
the questioned e-mails originated from phone No. 8125028 which appears
to have led the Investigators to P.W 14 Shaikh Naeem being the subscriber
of the phone Number 812028. Upon contact with P.W 14 Shaikh Naeem,
it was revealed that he is in the business of providing Internet Cables
to users. As the system of P.W 14 Shaikh Naeem automatically generates
the information with regard to the time of the user using the facility.
Hence P.W 14 was able to locate the originating transmission of e-mail
to have been done from connection No. 66 provided by him to accused
Fahad Naseem under a Contract, which in the chain of events led the
investigator to the home of Fahad Naseem leading to the recoveries
of the original manuscript of questioned e-mails in English and Urdu
under the handwriting of accused Ahmed Omer Saeed Shaikh and accused
Shaikh Adil. These original handwriting in English and Urdu have been
duly confirmed by P.W-10 Ghulam Akbar Jafferi a handwriting expert
to be the writing of accused Ahmed Omar Saeed Shaikh in English and
accused Shaikh Adil in Urdu.

P.W 8 Ronald Joseph.

44. This P.W is a Special
Agent of Federal Bureau of Investigation and has been certified by
the FBI Laboratory to be in the computer analysis response team as
a Computer Forensic Examiner. He has been certified by the FBI to
conduct Computer Forensic Examination for DOS/WINDOWS Operating System,
APPLE/MACINTOSH Operating System and LINUX/UNIX Operating System.
He has attended various examinations and has put in over 800 hours
of computer related training as per certificate issued by the U.S.
Department of Justice, Federal Bureau of Investigation (Ex. 49-A).

45. The leading of Shaikh
Naeem to the recovery of the Laptop being used through connection
No. 66 from his system at the house of accused Fahad Naseem on 11/02/2002
was provided to this witness who had examined the same and conducted
the Forensic Examination and formulated his report which was conveyed
to the investigation from the Consulate General of the United States
of America vide Ex. 49/B. On examining the report, he has categorically
stated that the Black Soft Computer case contained "PROWORLD" written
on the exterior and upon the opening the case a dell latitude Cpi
Laptop was found in it. The laptop was identified in the report produced
by this witness to be of model PPL with Serial No. of ZH942 and located
inside the Laptop was an IBM Travel Star Hard Driver which was stated
to have been removed from the Laptop and viewing the label on the
Hard Drive Model, the Drive was identified as 4.32 GB of storage capacity
and the Model No. was determined by this witness to be DKLA24302 with
a serial number of 4ZIM000N81834. On examining articles 1 and 2 of
Ex. 49 compared with the mashirnama of recovery of Laptop in juxtaposition
with the computer Forensic Examination Report and identifying the
numbers of the same, there is no doubt whatsoever that the Laptop
is the same equipment which was recovered from the possession of accused
Fahad Naseem on 11/02/2002.

The Forensic Examination
Report is also Ex. 49/B. It would be seen that the said report reflects
the Laptop to have been made available to this witness on 4/02/2002
as suggested by the defence. Availability of the Laptop at the American
Consulate on 4/02/2002 is not only un-natural but impossible because
of the fact that complainant Mariane Pearl had filed the complaint
with the police on 4/02/2002 (Ex. 63/A) at 2345 hours which had in
fact set the ball rolling at the hands of the Investigating Agency.

46. Report of this witness
relates to demands contained in the Hard Disk of which traces were
made and report was formulated. As such it is the substance which
is the essence and not the point of time when it was made or else
there was no occasion whatsoever for accused Fahad Naseem to be possessed
with the original handwritten scripts of the same e-mails which were
received by the receivers and certified by the handwriting expert
P.W Ghulam Akbar Jafferi to be in the hand of accused Shaikh Adil
and accused Ahmed Omar Saeed Shaikh in Urdu and English respectively.
Even upon examining the tickets produced by this witness, it would
be seen that on 11/02/2002 upto 15/02/2002 he was available at the
City of Karachi and thus it is that period when the examination logically
could have been conducted by him whereof followed by report coming
from Washington D.C based on the notes which were carried by this
witness to U.S.A.

47. The evidence of this
witness further spells out that he did not bring the entire data out
from the Hard Drive but in fact had made mirror images of the data
on the other hard drive without disturbing the original Hard Drive.
Various suggestions have been made to challenge the credibility of
this witness but he has been able to withstand the test of the cross
examination by specifically stating that all these suggestions which
could allege tampering or manipulation with the Hard Disc was not
so done in this case. Even otherwise, there appears to be no reasonable
justification for tampering a piece of evidence of this nature in
the absence of any alleged animosity.

48. On having dilated
upon the aforementioned witnesses on Point No. 03, it would be necessary
to state that there was no occasion whatsoever that accused Fahad
Naseem be possessed with the two original manuscripts at the time
of his arrest, the Laptop which transmitted through connection No.
66 the e-mails containing the demands of ransom to the United States
in the terms mentioned herein above while the points for determination
had been framed. There was no reasonable justification or photocopies
of the same e-mails to have recovered from the possession of accused
Ahmed Omar Saeed Shaikh upon his arrest on 13/02/2002. Further, there
is no animosity or enmity of the writing experts to have opined positively
confirming the admitted documents obtained before the Judicial Magistrate
with the disputed documents. Such writing expert being P.W 10 Ghulam
Akbar Jafferi who has given his detailed reasons mentioned herein
above for arriving at a positive finding that the disputed writings
contained on the original e-mails are written by accused Ahmed Omar
Saeed Shaikh (English) and accused Shaikh Adil (Urdu) Ex. 51/C and
Ex. 51/B respectively. The Text of the same emails have not only been
received by Mariane Pearl but also by U.S Consulate, Wall Street Journal
and endless number of consumers World Wide.

It would thus be seen
that the e-mails dated 27/02/2002 raising demands of ransom upon having
not been met culminated into the second set of e-mail dt. 30/01/2002
threatening to kill Daniel Pearl within 24 hours if their demands
are not met.

49. Now as regards the
contentions of the learned defence counsels that these witnesses named
above are not trustworthy. This contention has not been supported
by the cogent proof and the citation referred to me by the learned
defence counsels have no relevancy to this case. Accordingly, I hold
that the prosecution has been successful in discharging its burden
about these points and these points therefore, stand proved and are
answered accordingly.

Point Nos 5 & 6

50. In order to prove
these points, the prosecution has examined P.W 12 John Molligon. This
witness had produced the original video cassette alongwith the copy
of the same. Both, the original and the copy were viewed by the defence
team, the team for the prosecution, the accused persons and myself.
The original tape was seen and returned and the copy was also seen
but retained as article 1 that was viewed on 14/05/2002. About these
points, I have heard arguments from the learned defence counsels Mr.
Abdul Waheed Katpar and also Mr. Rai Bashir Ahmed and the learned
Advocate General.

The contentions and arguments
of both the learned defence counsels are that P.W 12 John Molligon
who has produced original video cassette has not disclosed the source
from whom he had obtained video cassette and it has also not been
disclosed that who had prepared this video cassette. Both the learned
defence counsels in their respective arguments have submitted that
video cassette Article-1 is not a substantial piece of evidence because
this video cassette is a false and it can be prepared falsely because
the science nowadays has developed such technology through which the
fake video cassette can be prepared for involving any body and innocent
men in such instant cases.

Both the learned defence
counsels have further argued out that video cassette is a document
and for proving this document the person who has prepared should have
been examined or in whose presence this video cassette was prepared
or edited should have also been examined. But in the instant case,
this has not been done therefore, according to the learned defence
counsels this video cassette Article-1 has no any evidentiary value.

51. As against this Mr.
Raja Qureshi the learned Advocate General has submitted that this
video cassette is a cogent piece of evidence and it can certainly
be relied upon. He in support of his arguments has referred Article
164 of Qanun-e-Shahadat Order 1984.

52. Now, the accused
persons in their respective statements under Section 342 Cr.P.C. have
merely made denial of the prosecution charges against them, without
providing of furnishing any documentary proof to reflect that the
instant case involving all the allegations against them is based on
pre-existing enmity between the witnesses and the complaint party
and the deceased.

53. Now, I want to discuss
about this video cassette. This video cassette upon being viewed reflects
the same demands which are contained in the e-mails sent in Urdu and
English under the hands of accused Ahmed Omar Saeed Shaikh (English)
and Shaikh Adil (Urdu). It further conveys the atrocities being committed
in Palestine, Kashmir and various other places.

The tape through in law
is admissible in evidence under the Provisions of Article 164 of the
Qanun-a-Shahadat and this witness was subjected to extensive cross
examination wherein he had stated that such tapes could be fake tapes
also prepared but at the same time the same witness on record is stated
to have said that fakeness of such tape could be and has been determined
by the experts of the FBI who certified the same not to be fake.

54. Therefore, I find
that what surfaces from viewing this tape is the motive of the accused
persons, which stands proved for raising the demands of ransom, the
actual and physical slaughtering of Daniel Pearl being decapitated
and this action about the accused persons falls within the provisions
of Section 6(e) of the Anti Terrorism Act, 1997 thereby conveying
the scene of fear, insecurity and terror. It is further transpires
that the captivity of Daniel Pearl stands proved in the hands of all
the accused persons and when their demands as mentioned in the e-
mails were not met or not fulfil, therefore, the un-natural death
of Daniel Pearl was caused in a brutal manner by the accused persons.
These points are answered accordingly and the prosecution side has
been successful in discharging its burden. Point No. 07

55. About this point,
I have heard the arguments of the learned defence counsels and the
learned Advocate General.

56. Mr Abdul Waheed Katpar
the learned defence counsel has in arguments submitted that accused
Ahmed Omer Saeed is a innocent man and he has been involved falsely
in this case. The prosecution side has miserably failed to prove this
case beyond any reasonable doubt against accused Ahmed Omer Saeed
Shaikh. According to Mr Katpar accused Ahmed Omer Saeed Shaikh has
neither aided, abetted, participated in the alleged crime. He had
never made any conspiracy for kidnapping for ransom raising demands
of ransom and causing murder of Daniel Pearl.

According to Mr Katpar
the witnesses in this case against the accused persons are mostly
police men and their testimonies can not be believed as to be true.
The recoveries shown against the accused Omer Saeed Shaikh were not
witnessed by the local inhabitants of the place as required under
Section 103 Cr.P.C. Therefore, according to him the case is very much
doubtful.

57. Mr Rai Bashir Ahmed
the learned defence counsel for all the accused persons including
Ahmed Omer Saeed Shaikh contended that the accused persons are innocent
the case is false against them. They had never participated in the
alleged offence, in any manner. The witnesses in this case are the
set up witnesses and most of the witnesses are from the Police party
and other witnesses are not the respectable persons of the locality.
The recoveries of the Laptop computer and e-mail writings and the
messages are false. Their confessions before the Judicial Magistrate
is very much defective and not voluntary. The identification test
held regarding the accused persons is not legal therefore, according
to him the case is doubtful and the state or the prosecution has failed
to prove it's the onus successfully against the accused persons.

58. As against this Mr
Raja Qureshi the learned Advocate General has argued out that no doubt
major portion or number of the witnesses regarding the alleged offence
against accused persons or from police party, but their evidence can
not be brushed aside due to non-availability of the private witnesses.

The police party/P.Ws
are therefore, in such cases competent witnesses as those of private
witnesses, unless any malafide is proved against them. According to
Mr Raja Qureshi he has further submitted in his arguments that the
defence side have failed to prove any malafide against the police
witnesses. He has further submitted in his arguments that the accused
party in their respective statements u/s 342 Cr.P.C. have only made
denial of the allegations against them and their oral denial can not
be accepted on absence of producing the recorded enmity or any cogent
proof to dis-proving the charges against them.

59. I have given my considered
view to the arguments advanced before me, I find that the accused
persons in their respective statements u/s 342 Cr.P.C. has made oral
denial of the allegation against them. They had not produced any record
showing the pre-existing enmity between the prosecution side and themselves.
One of the accused Ahmed Omer Saeed Shaikh has examined two defence
witnesses namely Mr Rauf Ahmed Shaikh D.W. and Mr Saeed Ahmed Shaikh,
who is father of accused Omer Saeed. Mr Rauf Ahmed Shaikh who is District
and Sessions Judge of Muzaffargarh and is maternal uncle of accused
Omer Saeed Shaikh and the second defence witness Saeed Ahmed is his
father.

The defence plea that
he was arrested by the police from Lahore and as such Ahmed Omer Saeed
Shaikh was handed over to DIG Police Lahore because of the reasons
that his parents were harassed. Accused Ahmed Omer Saeed Shaikh has
taken the plea that he was arrested by the Lahore Police and arrest
shown by I.O. Hameedullah Memon in this case by him @ Karachi is a
false story. In this connection, D.W. No. 1 Mr Rauf Ahmed Shaikh has
also deposed that he had handed over the custody of accused Ahmed
Omer Saeed Shaikh to DIG and he was arrested by him. D.W. No. 02 Saeed
Ahmed Shaikh has also deposed the same story. Now, it can be easily
said that a criminal or any body else during this scientific age can
easily arrive at Lahore or at any other far place after committing
any crime at any other place. So the plea of arrest from Lahore raised
by Omer Saeed Shaikh has no any legal weight. I further find that
D.W. 1 Mr Rauf Ahmed Shaikh in his defence evidence (Ex. 101) in cross
examination has disclosed that accused Omer Saeed Shaikh was previously
involved and arrested by the Indian Police and was tried in a case.
This admission and the disclosure of D.W. Muhammad Rauf Shaikh reflects
very much that present accused Ahmed Omer Saeed Shaikh appears habitual
offender in making the conspiracy Internationally.

60. Now, in order to
deal with the aspect as to whether the accused have aided, participated
or committed acts for achieving the objectives of the hatched conspiracy
of kidnapping for ransom, raising demands of ransom and causing murder
of Daniel Pearl. Therefore, it would be necessary to first touch upon
the acts done by accused Ahmed Omer Saeed Shaikh in brief. First,
he had hatched a conspiracy at Room No. 411 at Akbar International
Hotel, Rawalpindi with absconding accused Arif alias Hashim and in
the presence of P.W-6 Asif Mahfooz Farooqi. Based on the said conspiracy
between absconding accused Arif and Ahmed Omar Saeed Shaikh on the
pretext of arranging a meeting of Daniel Pearl with Syed Mubarak Shah
Gilani, it was planned and to implement the said conspiracy and plan,
it was Ahmed Omer Saeed Shaikh who under his own handwritten duly
certified by the writing expert to be his handwriting recorded the
demands raised in English.

Simultaneously, the same
demands were recorded under the hand of Shaikh Adil duly confirmed
by the writing expert in Urdu. These demands were transmitted from
the Laptop of accused Fahad Naseem through connection No. 66 provided
to him by P.W 14 Shaikh Naeem which was tracked down leading to the
recoveries of the equipments used for transmitting of the e-mails
along with the scanner and the Polaroid and Zoom Camera with films.

61. About the e-mail
messages the accused persons Adil Shaikh and Fahad Naseem have made
confessions before the P.W-9 Judicial Magistrate Erum Jahangir and
P.W. Erum Jahangir in her deposition on record has deposed that these
accused persons had made confessions and she had given a note at the
foot of the confessional statement on record that the confessions
was voluntary. Apart from the Hand Writing Expert Ghulam Akbar Jafferi
in his respective deposition on record has confirmed the hand writing
of the messages as sent by the accused persons.

62. Coming to the acquisition
of Polaroid and Zoom Camera, there is evidence to the effect which
has come on record and which has not been shaken by the defence through
P.W 16 Muhammed Arif who had sold the Polaroid Camera and Zoom Camera
Films to accused Salman and Fahad Naseem, whereas, the scanner was
purchased from P.W-13 Rajesh Kumar of Jogi Computers by Salman Saqib
and Fahad Naseem (Ex. 55/A and Ex. 55-E). All these instruments including
Laptop were necessary for transmitting the e-mails of the same text
hand-written by Ahmed Omar Saeed Shaikh and Shaikh Adil in English
and Urdu respectively. The said e- mails were sent with attachments,
which attachments could have only been possible after having obtained
the Zoom Camera, the Polaroid Camera and the scanner which were purchased
by accused Fahad Naseem and Salman Saqib.

63. Coming to the aspect
of kidnapping of Daniel Pearl, there is strong piece of evidence of
independent P.W-1 Nasir Abbas, Taxi Driver whose evidence has not
been shaken in any manner while he testified that it was on 23/01/2002
in front of Village Restaurant adjacent to Metropole Hotel, Saddar
Karachi at 7.00 p.m., that he says that accused Ahmed Omar Saeed Shaikh
to have taken Daniel Pearl in his car after Daniel Pearl left his
taxi and boarded into the car after coming from the office of CPLC
at 6.45 p.m., which aspect is duly supported by P.W 2 Jameel Yousuf.
Hence Daniel Pearl was last seen alive in the company of accused Ahmed
Omer Saeed Shaikh till 7.00 p.m. on 23/01/2002.

As such, an irresistible
conclusion could be arrived at that the conspiracy was hatched at
Akbar International Hotel, Rawalpindi in Room No. 411 which has been
testified by the receptionist of the Hotel P.W-7 Aamir Afzal Qureshi
as well as P.W 6 Asif Mehfooz Farooqi followed by P.W 1 last seen
Daniel Pearl in the company of accused Ahmed Omer Saeed Shaikh at
Karachi while sitting in his car, followed by the raising of demands
through the e-mails coupled with the aspect that for transmitting
the e-mails with attachments it was necessary to procure the equipments
which had been so done by accused Salman Saqib and Fahad Naseem in
the process of meeting of minds to achieve the objective of the hatched
conspiracy.

64. Now, coming to the
aspect as to how were the e-mails transmitted and how was accused
Fahad Naseem, Shaikh Adil, Ahmed Omar Saeed Shaikh and Salman Saqib
become instrumental in aiding abetting and committing the acts for
transmitting the demands of ransom, it would be necessary to cursorily
look at the evidence of P.W 8 Ronald Joseph P.W-14 Shaikh Naeem and
P.W 18 Mehmood Iqbal Hashmi. Indeed P.W-8 is the F.B.I. agent and
an expert who has examined the Laptop possessed by accused Fahad Naseem
and recovered from his possession, P.W. 14 Shaikh Naeem is the internet
service provider who had provided connection No. 66 to accused Fahad
Naseem under a contract executed between accused Fahad Naseem and
the proprietorship concern of P.W. 14 and finally through P.W. 18
Mehmood Iqbal Hashmi who was approached by the U.S. Consulate to identify
and track down the I.P address which is the Internet Protocol address
which was tracked down by him resulting into the finding of the telephone
number 8125028 by him of P.W 14 Shaikh Naeem leading to connection
No. 66 provided to accused Fahad Naseem who used the Laptop which
is testified from the images transmitted from the Hard Drive of the
Laptop of accused Fahad Naseem by P.W-8 Ronald Joseph an F.B.I. agent
and an expert on the Forensic Examination of Computers.

65. The Process of Tracking
e-mails messages was duly conducted by P.W 18 Mehmood Iqbal Hashmi,
P.W-14 Shaikh Naeem, P.W 8 Ronald Joseph, an FBI agent. It was P.W
18 Mehmood Iqbal Hashmi who had tracked down the telephone number
being 8125028 which led to the connection of P.W-14 Shaikh Naeem and
on approach to Shaikh Naeem, it reveals that he was an Internet service
provide who has provided as many as 70 connections out of which connection
No. 66 was provided by P.W 14 Shaikh Naeem to accused Fahad Naseem,
who had used his Computer Laptop and employed connect No. 66 to transmit
the e-mails raising demands of ransom in English and Urdu. This aspect
stands duly confirmed by the Forensic Examination Report conducted
by P.W 9 Ronald Joseph FBI agent who had taken images of the Hard
Disk of the Laptop Computer possessed by accused Fahad Naseem. For
the purposes of convenience, reference could be made to Ex. P-8 (1-
14) and Ex. 49-C/1 to Ex. 49-C/64 and Ex. 64-A with six leaves produced
by P.W. 18 Mehmood Iqbal Hashmi. Consequently this point stands proved.

66. Now, at this stage
I come to the submissions made by the defence counsels that the FIR
is delayed by 12 days without any reasonable explanation. My reply
in this connection is that complainant is a Mariene Pearl wife of
Daniel Pearl and it is therefore, clear that a woman always fear in
lodging FIR promptly at the police station in such case of murder
and abduction and therefore, this delay in lodging FIR can be overlooked
when there is Lady complainant in such cases..

67. The learned defence
counsels have also contended that the FIR of this case should have
been produced by the complainant herself. Such contention was resisted
by the prosecution side on the ground that FIR is not a substantive
piece of evidence and can be used only for conveying the information
to the police and the police had investigated the instant case and
had brought all the materials on record and also evidences, thereupon,
the accused persons were arrested and their confessions were recorded
by the learned Judicial Magistrate regarding the e-mail messages sent
by them through Laptop computer and the video cassette was recovered
Article-1 and finally the case was challaned. The complainant being
Lady was in France and she had given birth to a son, therefore in
these circumstances the complainant could not undertake the Journey
from France to Pakistan therefore, the complainant was given up by
prosecution. In assessing these contentions, I find that the prosecution
side had rightly not examined the Lady Complainant. The contentions
of DGs are replied accordingly.

Point No. 08.

68. In the light of aforesaid
findings and evidence of P.Ws brought on record, I find that the motive
of the occurrence against the accused as alleged stood proved and
established beyond any doubt. The minor discrepancies pointed out
in evidence of P.Ws did not hit or touched the root of the case. The
accused had not been able to establish any pre-existing enmity between
themselves and the prosecution side for their false implication in
the case, there is judicial confession of the accused persons on the
record and the recoveries of the e-mail messages and the Laptop computers
and so also the scanner and the receipts for the purchase of cameras
and there is opinion of the handwriting expert on the writings of
the e-mails and there is evidence of identification test by the P.Ws
on the point of kidnapping of Daniel Pearl and conspiracy regarding
Daniel Pearl.

The oral denial of the
charges of the prosecution made by the accused party and the evidence
of the defence witnesses do not result the instant case in a doubtful
position. The captivity of the Daniel Pearl in possession of the accused
party stands proved and the non-fulfilment of their demands has presumably
resulted the murder of Daniel Pearl at the hands of accused party.

69. I have therefore,
arrived at the conclusion that all the four accused persons are guilty
of offences under Sections 120-A PPC, 365-A, 302 PPC read with Section
6(a) of the Anti Terrorism Act, 1997. Now coming to the aspect of
sentence in view of the Terrorist Activities of accused Ahmed Omer
Saeed Shaikh it appears that this accused had engineered entire plan
of creating sense of fear nationally and internationally and thereby
made conspiracy and he was a Principal Offender and he made with his
efforts the other remaining accused to be his aiders/associates for
the purpose of completion of his above plan involving the sense of
fear, insecurity nationally and internationally.

I therefore, convict
accused persons under Section 365-A, 302 PPC read with Section 6(a)
of the Anti Terrorism Act 1997 and S. 120- A PPC, and thereupon as
a result accused Ahmed Omer Saeed Shaikh is sentenced to death under
Section 7 of the Anti Terrorism Act, 1997, to be hanged by the neck
till he is dead. The other accused persons namely Adil Shaikh, Salman
Saqib and Fahad Naseem are sentenced under Section 7 of the Anti Terrorism
Act, 1997 to suffer Life Imprisonment. They are also sentenced to
pay fine of Rs. 5,00,000/- each. In case of non-payment of fine, these
accused persons shall undergo sentence for Five (5) Years more. This
court also direct all the four accused persons to pay jointly a sum
of Rs. 20,00,000/- (Twenty Lacs), which shall be paid by them in equal
share and if this amount is paid it shall be given to the widow of
Daniel Pearl and also to his Orphan son. The imprisonment sentences
shall to run concurrently and benefit of Section 382-B Cr.P.C. is
given to the accused persons. The death sentence so awarded will be
executed subject to the confirmation by the Hon'ble High Court of
Sindh, for which the reference is separately made to the Hon'ble High
Court of Sindh.

70. Before I part with
this Judgment, I would like to record my appreciation of all the members
of the prosecution team and their assistance and also members of the
defence team and their assistance.

71. Now, the accused
persons who are present in judicial custody, they are remanded back
to serve out their sentences so awarded. It is pointed out here that
absconding accused persons of this case have been allotted a separate
case No. as Spl. case No. 9/2002 by the Hon'ble Administrative Judge
A.T.Cs Karachi therefore, on their arrest their case will be tried
separately by the competent Anti Terrorism Court Karachi as their
case has been kept on dormant file by the A.T.C. Karachi having competent
jurisdiction.

Announced in open Court
in Jail (C.P. Hyd). Dated this the 15th day of July 2002.